The Haymarket Affair and the Origins of May Day

(Photo: Frank Edwards / Flickr)May 1st is May Day, the international workers' holiday honoring the labor movement. May Day is celebrated in at least 80 countries worldwide, from Argentina to Vietnam, but not in the United States. Here, our "Labor Day" was carefully put into September – by President Grover Cleveland in 1894 – specifically so that we would not observe May Day, with all of its radical roots in syndicalist labor history. This is deeply ironic, for the event that gave rise to May Day observances the world over occurred right here in the United States: the bombing at Haymarket Square, Chicago, on May 4, 1886, during a labor rally.

The context for the Haymarket riot in 1886 was the movement for the eight-hour work day. The movement had started at least as early as 1877, when the Workingmen's Party in Chicago called a general strike beginning July 25 in support of the eight-hour movement. The next day, on July 26, 1877, thousands of strikers were attacked and beaten into submission by police and U.S. Army infantrymen with fixed bayonets. Thirty strikers, including a number of children, were murdered by the police and federal troops. During that strike, typesetter Albert Parsons, later one of the Haymarket martyrs, was fired from his job because of a speech he had given during the strike. The bloody suppression of the 1877 strike caused another of the Haymarket martyrs, upholsterer August Spies, to join an armed worker's self-defense organization.

The national movement for the eight-hour day reached a crescendo in the mid-1880s. In 1885, there were 645 strikes nationwide at over 2,400 businesses in support of the eight-hour goal. In 1886, the year of the Haymarket riot, the number of strikes had more than doubled to 1,400, affecting over 11,000 businesses!

On Saturday, May 1, 1886, a nationwide general strike in support of the eight-hour day was observed. In Chicago alone, 60,000 workers walked off their jobs. In a truly prescient headline, a Chicago labor newspaper that day announced: "The Dies Are Cast! The First of May, Whose Historical Significance Will Be Understood and Appreciated Only in Later Years, Is Here!" The general strike for the eight-hour day continued on Monday, May 3. On the afternoon of May 3, August Spies was addressing a rally of striking workers that had been locked out of the McCormick Reaper Works in Chicago, when hundreds of police officers simply began shooting into the crowd of workers. Several workers died, and many others were wounded. That night, Parsons, Spies, and other anarchists printed leaflets calling for a labor rally the next afternoon in Haymarket Square to protest the massacre of unarmed strikers by police at the McCormick plant.

The labor demonstration in Haymarket Square in the afternoon of Tuesday, May 4, 1886, was peaceful until the very end. Parsons spoke to the group and then left the rally to meet his family at a nearby labor hall. Spies spoke at the rally, urging peaceful action to protest the massacre of the previous day and to support the cause of the eight-hour day. Chicago Mayor Carter Harrison attended and reported to the police that the demonstration was "tame" (Harrison's word) and peaceful. But near the end of the rally, an unknown person threw a bomb into the phalanx of police officers attending the rally. In response, the police officers attacked the unarmed laborers. Hundreds of police officers fired into the terrified, fleeing crowd. An unknown number of people were killed and many others were wounded. Many police officers were wounded, some seriously, by gunfire. Every such wounded police officer – every one! – had been shot by other police officers. In the bloody police riot that followed the bombing, police officers shot wildly and at random; labor protesters and police officers alike were shot down.

In the days after the riot, eight local Chicago anarchists were indicted and arrested: Parsons, Spies, Michael Schwab, Samuel Fielden, Louis Lingg, George Engel, Adolph Fischer, and Oscar Neebe. The indictment acknowledged that the bomb had been "thrown by an unknown person" but alleged that the unknown bomb-thrower had been "aided abetted, and encouraged" the indicted anarchists. In the aftermath of the indictments of the eight anarchists, a kind of brutal martial law was imposed on Chicago. Anarchist and labor meeting halls were closed down. Hundreds of suspects were rounded up, interrogated, and held by police without charges being brought. Mayor Harrison closed down Chicago's leading labor newspaper and banned public meetings – all by ukase. Mainstream newspapers blamed the eight-hour movement for the bombing and ensuing bloodshed, and in the Red Scare that followed, the eight-hour movement fizzled for a time. In fact, the eight-hour work day did not become law in the United States until the enactment of the Fair Labor Standards Act in 1938.

All eight of the defendants were tried and convicted. Seven were sentenced to death. Fielden and Schwab later had their sentences commuted to life imprisonment. Lingg died on the eve of his scheduled execution, probably assassinated by the police, although some accounts say that Lingg died by his own hand. Neebe was sentenced to 15 years. Parsons, Spies, Fischer and Engel were hanged. In a final gesture of retribution, the ropes used to kill the prisoners were made too short, so that instead of dying instantly when the trap doors opened on the gallows, each prisoner was made to suffocate to death slowly and excruciatingly. American justice.

There were two big things wrong with this situation.

First, at least seven (and maybe all eight) of the defendants were actually innocent. By "actually innocent," I do not mean that there was some hyper-legalistic technicality working in their favor. What I mean by "actually innocent" is that they had nothing whatever to do with the bombing. Some of them were not present when it happened. (For instance, Parsons was at a labor hall, and Engel was at home on Milwaukee Avenue.) The defendants had not known that the bombing would occur; they had not been involved in any planning or abetting; they had had nothing whatever to do with the crime. That is, they were actually innocent. (Some historians have argued that the one of the eight defendants, Louis Lingg, may have been tangentially involved in bomb-making; however, everyone agrees that if this were the case, no scintilla of evidence of that fact was introduced at his trial.)

The second problem with the execution and imprisonment of the Haymarket martyrs is the extreme injustice of their trial. On July 15, 1886, prosecutor Julius Grinnell made his opening statement, stressing the need to convict the dangerous anarchists in the dock. The next day, Judge Joseph E. Gary delivered a daylong address to the jury, repeating most of the points that had been raised by the prosecutor, and re-emphasizing the importance of all the defendants being convicted. Judge Gary was very clear on this point: the defendants needed to be convicted not for what they had actually done, but for what they believed. The defendants, after all, were admitted anarchists. No one was surprised. Judge Gary had spent weeks carefully selecting a jury that was bound to convict. When prospective jurors claimed that they were prejudiced against anarchists, Judge Gary put them on the jury. When prospective jurors said they believed that these specific defendants were guilty, Judge Gary put them on the jury. Judge Gary even seated a juror who was a relative of one of the slain police officers! Prosecution witnesses proffered wholly invented testimony, riddled with obvious contradictions and impossibilities. The defense offered the proverbial parade of witnesses who testified that the defendants had not thrown the bomb or were elsewhere when the bomb had been thrown.

All the defendants were convicted. Four (or, depending on how you look at it, five) were executed.

There was an international outpouring of support for the condemned Haymarket anarchists. Protest meetings, some featuring prominent people, were held in Paris, London, The Hague, Vienna, Brussels, Lyon, and elsewhere. This was, in fact, the etiology of the worldwide observance of May Day. In the United States, however, the Haymarket trial led to reaction and a Red Scare – the first of several Red Scares in U.S. history. Illinois passed a law making it illegal to advocate "destruction of the existing order." Similar laws were passed in other states and at the federal level. Cornell Professor H. C. Adams was one of many who lost his job after speaking out about the injustices of the Haymarket trial. Later Red Scares in the United States included the post-World War I Palmer Raids of 1919 and 1920; and, of course, the post-World War II McCarthy era. (Emma Goldman was deported as part of the Palmer Raids; a fine book has recently been published about the Palmer Raids: "Young J. Edgar Hoover and the Red Scare 1919-1920," by Kenneth D. Ackerman, Viral History Press, September 27, 2011.)

On September 13, 1886, the Illinois Supreme Court rejected the appeal of the Haymarket defendants. The Anarchists' Case, 122 Ill. 1, 12 N.E. 865 (1887). The case report of the Illinois Supreme Court decision takes up 130 pages in the Northeast Reporter and 265 pages in the Illinois Reporter. The overwhelming sense one gets from reading the case is that the Haymarket martyrs were convicted, imprisoned, and executed not for what they had done (for there was no evidence of that) but for what they believed and said.

The first thirty pages of the case in the Northeast Reporter (67 pages in the Illinois Reporter) are a collection of newspaper articles that appeared in Chicago labor newspapers with which the defendants were associated and reports of speeches given over the years by one defendant or another.

Let us examine the newspaper clippings first. The clippings come from three Chicago-area labor newspapers of the era. What is most interesting in this vast collection of articles cited and quoted by the Illinois Supreme Court is that the Court makes not the slightest attempt to connect any article(s) to any defendant(s). The trove of clippings is merely provided to explicate why the defendants are dangerous and deserve the sentences they received. The articles date back to 1884; many advocated in favor of the eight-hour work day. For example, on May 1, 1886, one newspaper published these dangerous, inflammatory words: "For twenty years the working people have been begging extortioners to introduce the eight-hour system, but have been put off with promises. Two years ago they resolved that the eight-hour system should be introduced in the United States on the first day of May, 1886. The reasonableness of this demand was conceded on all hands." 122 Ill. at 26-27, 12 N.E. at 880. There was another dangerous newspaper article the very next day: "Even where the workingmen are willing to accept a corresponding reduction in wages with the introduction of the eight-hour system, they were mostly refused." 122 Ill. At 28, 12 N.E. at 880.

Then there were the speeches. For example, the Court tells us that Parsons gave a speech on April 24, 1886 urging workers to demand an eight-hour day. 122 Ill. at 48, 12 N.E. at 888-889. He gave another speech on April 3, 1886 urging an "attempt to inaugurate the eight-hour system." 122 Ill. At 48, 12 N.E. at 888. Indeed, the Illinois Supreme Court tells us that: "During the years 1885 and 1886 the defendants Fielden, Parsons, Engel, Spies, and Schwab made numerous speeches to workingmen." 122 Ill. at 889, 12 N.E. at 50. The Court goes on to recite the dates and locations of some of these speeches, which defendants spoke (and in what sequence) and that the defendants were advocating the eight-hour work day. "At a meeting at Twelfth Street Turner Hall on October 11, 1885, Mr. August Spies was introduced . . . and offered a resolution . . . for the establishment of an eight-hour work-day, to begin May 1, 1886 . . ." 122 Ill. at 52, 12 N.E. at 890.

After losing in the Illinois Supreme Court, the defense team, led by lawyers William Perkins Black and Ben Butler, sought review by the U.S. Supreme Court. Their argument to the U. S. Supreme Court was a novel one for the time. They argued that the procedural irregularities of the trial violated guarantees of the Bill of Rights, which, they argued, were made applicable to the states through the due process clause of the (then-recently-enacted) Fourteenth Amendment.

This was an audacious argument (perhaps a better word would be "unwise"). The United States Supreme Court made short shrift of the argument of the Haymarket defendants' defense team. The Anarchists' Case, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80 (1887). "That the first 10 articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than half a century ago, and that decision has been steadily adhered to since. [The Supreme Court here collects cases for the abecedarian proposition, starting with Barron v. Baltimore in 1883.]" 123 U.S. at 166, 8 S.Ct. at 24.

It was not until the twentieth century, starting with Gitlow v. New York, 268 U.S. 652 (1925), that the Supreme Court began making the guarantees of the Bill of Rights applicable to the states through the due process clause of the Fourteenth Amendment – and then only on a piecemeal basis. And, although Gitlow was the beginning of this process, the victory for Mr. Gitlow himself was rather a pyrrhic one. Ben Gitlow was convicted of violating New York State criminal anarchy statute (enacted in 1902, re-enacted in 1909). 268 U.S. at 653, 45 S.Ct. at 654. His sole offense was that he had published an Anarchist Manifesto. New York's criminal anarchy statute made it illegal to advocate anarchism in speech or in writing, regardless of how theoretically or abstractly. Gitlow appealed from the highest appellate court in New York, the Court of Appeals, to the U.S. Supreme Court. "The sole contention here is, essentially, that as there was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result, the statute as construed and applied by the trial court penalizes the mere utterance, as such, of doctrine having no quality of incitement." 268 U.S. at 664, 45 S.Ct. at 629.

Gitlow argued that this circumstance violated the First Amendment, made applicable to the states through the Fourteenth Amendment. In dictum (that is a portion of the opinion not directly deciding the case at hand), the Court said (and this is why the case is famous): "For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." 268 U.S. at 666, 45 S.Ct. at 630. The Court then upheld the constitutionality of New York's criminal anarchy statute, and upheld Gitlow's conviction. Justice Holmes issued a brief dissent (in which Justice Brandeis joined) repeating his view that there should be no punishment of speech absent "a clear and present danger" of resulting violence. 268 U.S. at 672, 45 U.S. at 632. Ben Gitlow went to prison for publishing a manifesto.

As the twentieth century progressed, one after another of the guarantees in the Bill of Rights were made applicable against the states through the Fourteenth Amendment. Today, as Yale Law School Professor Akhil Reed Amar points out in The Bill of Rights and the Fourteenth Amendment, 101 Yale L. Journal 1193 (1992), the parts of the Bill of Rights that have been applied to the states "reads like the greatest hits of the modern era": freedom of speech and the press (New York Times v. Sullivan, 376 U.S. 254 (1964)); privilege against compelled self-incrimination and right to counsel (Miranda v. Arizona, 384 U.S. 436 (1966)); right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); right to a jury trial in a criminal case (Duncan v. Louisiana, 391 U.S. 145 (1968)).

But when plied in 1886 by the lawyers for the Haymarket defendants, the argument that the Bill of Rights applied to the states through the due process clause of the Fourteenth Amendment was a sure-fire loser. The Supreme Court declined even to hear the Haymarket appeal. 123 U.S. at 182, 8 S.Ct. at 32.

Today, I would hazard that not one American in 100 knows about the Haymarket riot, even though it provided the basis for the worldwide observances today of May Day. Probably not one American in a thousand could identify Albert Parsons or August Spies (much less Michael Schwab or Adolph Fischer). Today, May Day is the international workers' holiday, observed in much of the world – but ironically not here in the United States where the events occurred that originally gave rise to the holiday.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Jerry Elmer is an environmental lawyer in Providence, Rhode Island. He is the author of Felon for Peace: The Memoir of a Vietnam-Era Draft Resister (Vanderbilt University Press 2005), which was published in Vietnam as Toi Pham Vi Hoa Binh.

The Haymarket Affair and the Origins of May Day

(Photo: Frank Edwards / Flickr)May 1st is May Day, the international workers' holiday honoring the labor movement. May Day is celebrated in at least 80 countries worldwide, from Argentina to Vietnam, but not in the United States. Here, our "Labor Day" was carefully put into September – by President Grover Cleveland in 1894 – specifically so that we would not observe May Day, with all of its radical roots in syndicalist labor history. This is deeply ironic, for the event that gave rise to May Day observances the world over occurred right here in the United States: the bombing at Haymarket Square, Chicago, on May 4, 1886, during a labor rally.

The context for the Haymarket riot in 1886 was the movement for the eight-hour work day. The movement had started at least as early as 1877, when the Workingmen's Party in Chicago called a general strike beginning July 25 in support of the eight-hour movement. The next day, on July 26, 1877, thousands of strikers were attacked and beaten into submission by police and U.S. Army infantrymen with fixed bayonets. Thirty strikers, including a number of children, were murdered by the police and federal troops. During that strike, typesetter Albert Parsons, later one of the Haymarket martyrs, was fired from his job because of a speech he had given during the strike. The bloody suppression of the 1877 strike caused another of the Haymarket martyrs, upholsterer August Spies, to join an armed worker's self-defense organization.

The national movement for the eight-hour day reached a crescendo in the mid-1880s. In 1885, there were 645 strikes nationwide at over 2,400 businesses in support of the eight-hour goal. In 1886, the year of the Haymarket riot, the number of strikes had more than doubled to 1,400, affecting over 11,000 businesses!

On Saturday, May 1, 1886, a nationwide general strike in support of the eight-hour day was observed. In Chicago alone, 60,000 workers walked off their jobs. In a truly prescient headline, a Chicago labor newspaper that day announced: "The Dies Are Cast! The First of May, Whose Historical Significance Will Be Understood and Appreciated Only in Later Years, Is Here!" The general strike for the eight-hour day continued on Monday, May 3. On the afternoon of May 3, August Spies was addressing a rally of striking workers that had been locked out of the McCormick Reaper Works in Chicago, when hundreds of police officers simply began shooting into the crowd of workers. Several workers died, and many others were wounded. That night, Parsons, Spies, and other anarchists printed leaflets calling for a labor rally the next afternoon in Haymarket Square to protest the massacre of unarmed strikers by police at the McCormick plant.

The labor demonstration in Haymarket Square in the afternoon of Tuesday, May 4, 1886, was peaceful until the very end. Parsons spoke to the group and then left the rally to meet his family at a nearby labor hall. Spies spoke at the rally, urging peaceful action to protest the massacre of the previous day and to support the cause of the eight-hour day. Chicago Mayor Carter Harrison attended and reported to the police that the demonstration was "tame" (Harrison's word) and peaceful. But near the end of the rally, an unknown person threw a bomb into the phalanx of police officers attending the rally. In response, the police officers attacked the unarmed laborers. Hundreds of police officers fired into the terrified, fleeing crowd. An unknown number of people were killed and many others were wounded. Many police officers were wounded, some seriously, by gunfire. Every such wounded police officer – every one! – had been shot by other police officers. In the bloody police riot that followed the bombing, police officers shot wildly and at random; labor protesters and police officers alike were shot down.

In the days after the riot, eight local Chicago anarchists were indicted and arrested: Parsons, Spies, Michael Schwab, Samuel Fielden, Louis Lingg, George Engel, Adolph Fischer, and Oscar Neebe. The indictment acknowledged that the bomb had been "thrown by an unknown person" but alleged that the unknown bomb-thrower had been "aided abetted, and encouraged" the indicted anarchists. In the aftermath of the indictments of the eight anarchists, a kind of brutal martial law was imposed on Chicago. Anarchist and labor meeting halls were closed down. Hundreds of suspects were rounded up, interrogated, and held by police without charges being brought. Mayor Harrison closed down Chicago's leading labor newspaper and banned public meetings – all by ukase. Mainstream newspapers blamed the eight-hour movement for the bombing and ensuing bloodshed, and in the Red Scare that followed, the eight-hour movement fizzled for a time. In fact, the eight-hour work day did not become law in the United States until the enactment of the Fair Labor Standards Act in 1938.

All eight of the defendants were tried and convicted. Seven were sentenced to death. Fielden and Schwab later had their sentences commuted to life imprisonment. Lingg died on the eve of his scheduled execution, probably assassinated by the police, although some accounts say that Lingg died by his own hand. Neebe was sentenced to 15 years. Parsons, Spies, Fischer and Engel were hanged. In a final gesture of retribution, the ropes used to kill the prisoners were made too short, so that instead of dying instantly when the trap doors opened on the gallows, each prisoner was made to suffocate to death slowly and excruciatingly. American justice.

There were two big things wrong with this situation.

First, at least seven (and maybe all eight) of the defendants were actually innocent. By "actually innocent," I do not mean that there was some hyper-legalistic technicality working in their favor. What I mean by "actually innocent" is that they had nothing whatever to do with the bombing. Some of them were not present when it happened. (For instance, Parsons was at a labor hall, and Engel was at home on Milwaukee Avenue.) The defendants had not known that the bombing would occur; they had not been involved in any planning or abetting; they had had nothing whatever to do with the crime. That is, they were actually innocent. (Some historians have argued that the one of the eight defendants, Louis Lingg, may have been tangentially involved in bomb-making; however, everyone agrees that if this were the case, no scintilla of evidence of that fact was introduced at his trial.)

The second problem with the execution and imprisonment of the Haymarket martyrs is the extreme injustice of their trial. On July 15, 1886, prosecutor Julius Grinnell made his opening statement, stressing the need to convict the dangerous anarchists in the dock. The next day, Judge Joseph E. Gary delivered a daylong address to the jury, repeating most of the points that had been raised by the prosecutor, and re-emphasizing the importance of all the defendants being convicted. Judge Gary was very clear on this point: the defendants needed to be convicted not for what they had actually done, but for what they believed. The defendants, after all, were admitted anarchists. No one was surprised. Judge Gary had spent weeks carefully selecting a jury that was bound to convict. When prospective jurors claimed that they were prejudiced against anarchists, Judge Gary put them on the jury. When prospective jurors said they believed that these specific defendants were guilty, Judge Gary put them on the jury. Judge Gary even seated a juror who was a relative of one of the slain police officers! Prosecution witnesses proffered wholly invented testimony, riddled with obvious contradictions and impossibilities. The defense offered the proverbial parade of witnesses who testified that the defendants had not thrown the bomb or were elsewhere when the bomb had been thrown.

All the defendants were convicted. Four (or, depending on how you look at it, five) were executed.

There was an international outpouring of support for the condemned Haymarket anarchists. Protest meetings, some featuring prominent people, were held in Paris, London, The Hague, Vienna, Brussels, Lyon, and elsewhere. This was, in fact, the etiology of the worldwide observance of May Day. In the United States, however, the Haymarket trial led to reaction and a Red Scare – the first of several Red Scares in U.S. history. Illinois passed a law making it illegal to advocate "destruction of the existing order." Similar laws were passed in other states and at the federal level. Cornell Professor H. C. Adams was one of many who lost his job after speaking out about the injustices of the Haymarket trial. Later Red Scares in the United States included the post-World War I Palmer Raids of 1919 and 1920; and, of course, the post-World War II McCarthy era. (Emma Goldman was deported as part of the Palmer Raids; a fine book has recently been published about the Palmer Raids: "Young J. Edgar Hoover and the Red Scare 1919-1920," by Kenneth D. Ackerman, Viral History Press, September 27, 2011.)

On September 13, 1886, the Illinois Supreme Court rejected the appeal of the Haymarket defendants. The Anarchists' Case, 122 Ill. 1, 12 N.E. 865 (1887). The case report of the Illinois Supreme Court decision takes up 130 pages in the Northeast Reporter and 265 pages in the Illinois Reporter. The overwhelming sense one gets from reading the case is that the Haymarket martyrs were convicted, imprisoned, and executed not for what they had done (for there was no evidence of that) but for what they believed and said.

The first thirty pages of the case in the Northeast Reporter (67 pages in the Illinois Reporter) are a collection of newspaper articles that appeared in Chicago labor newspapers with which the defendants were associated and reports of speeches given over the years by one defendant or another.

Let us examine the newspaper clippings first. The clippings come from three Chicago-area labor newspapers of the era. What is most interesting in this vast collection of articles cited and quoted by the Illinois Supreme Court is that the Court makes not the slightest attempt to connect any article(s) to any defendant(s). The trove of clippings is merely provided to explicate why the defendants are dangerous and deserve the sentences they received. The articles date back to 1884; many advocated in favor of the eight-hour work day. For example, on May 1, 1886, one newspaper published these dangerous, inflammatory words: "For twenty years the working people have been begging extortioners to introduce the eight-hour system, but have been put off with promises. Two years ago they resolved that the eight-hour system should be introduced in the United States on the first day of May, 1886. The reasonableness of this demand was conceded on all hands." 122 Ill. at 26-27, 12 N.E. at 880. There was another dangerous newspaper article the very next day: "Even where the workingmen are willing to accept a corresponding reduction in wages with the introduction of the eight-hour system, they were mostly refused." 122 Ill. At 28, 12 N.E. at 880.

Then there were the speeches. For example, the Court tells us that Parsons gave a speech on April 24, 1886 urging workers to demand an eight-hour day. 122 Ill. at 48, 12 N.E. at 888-889. He gave another speech on April 3, 1886 urging an "attempt to inaugurate the eight-hour system." 122 Ill. At 48, 12 N.E. at 888. Indeed, the Illinois Supreme Court tells us that: "During the years 1885 and 1886 the defendants Fielden, Parsons, Engel, Spies, and Schwab made numerous speeches to workingmen." 122 Ill. at 889, 12 N.E. at 50. The Court goes on to recite the dates and locations of some of these speeches, which defendants spoke (and in what sequence) and that the defendants were advocating the eight-hour work day. "At a meeting at Twelfth Street Turner Hall on October 11, 1885, Mr. August Spies was introduced . . . and offered a resolution . . . for the establishment of an eight-hour work-day, to begin May 1, 1886 . . ." 122 Ill. at 52, 12 N.E. at 890.

After losing in the Illinois Supreme Court, the defense team, led by lawyers William Perkins Black and Ben Butler, sought review by the U.S. Supreme Court. Their argument to the U. S. Supreme Court was a novel one for the time. They argued that the procedural irregularities of the trial violated guarantees of the Bill of Rights, which, they argued, were made applicable to the states through the due process clause of the (then-recently-enacted) Fourteenth Amendment.

This was an audacious argument (perhaps a better word would be "unwise"). The United States Supreme Court made short shrift of the argument of the Haymarket defendants' defense team. The Anarchists' Case, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80 (1887). "That the first 10 articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than half a century ago, and that decision has been steadily adhered to since. [The Supreme Court here collects cases for the abecedarian proposition, starting with Barron v. Baltimore in 1883.]" 123 U.S. at 166, 8 S.Ct. at 24.

It was not until the twentieth century, starting with Gitlow v. New York, 268 U.S. 652 (1925), that the Supreme Court began making the guarantees of the Bill of Rights applicable to the states through the due process clause of the Fourteenth Amendment – and then only on a piecemeal basis. And, although Gitlow was the beginning of this process, the victory for Mr. Gitlow himself was rather a pyrrhic one. Ben Gitlow was convicted of violating New York State criminal anarchy statute (enacted in 1902, re-enacted in 1909). 268 U.S. at 653, 45 S.Ct. at 654. His sole offense was that he had published an Anarchist Manifesto. New York's criminal anarchy statute made it illegal to advocate anarchism in speech or in writing, regardless of how theoretically or abstractly. Gitlow appealed from the highest appellate court in New York, the Court of Appeals, to the U.S. Supreme Court. "The sole contention here is, essentially, that as there was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result, the statute as construed and applied by the trial court penalizes the mere utterance, as such, of doctrine having no quality of incitement." 268 U.S. at 664, 45 S.Ct. at 629.

Gitlow argued that this circumstance violated the First Amendment, made applicable to the states through the Fourteenth Amendment. In dictum (that is a portion of the opinion not directly deciding the case at hand), the Court said (and this is why the case is famous): "For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgment by Congress – are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." 268 U.S. at 666, 45 S.Ct. at 630. The Court then upheld the constitutionality of New York's criminal anarchy statute, and upheld Gitlow's conviction. Justice Holmes issued a brief dissent (in which Justice Brandeis joined) repeating his view that there should be no punishment of speech absent "a clear and present danger" of resulting violence. 268 U.S. at 672, 45 U.S. at 632. Ben Gitlow went to prison for publishing a manifesto.

As the twentieth century progressed, one after another of the guarantees in the Bill of Rights were made applicable against the states through the Fourteenth Amendment. Today, as Yale Law School Professor Akhil Reed Amar points out in The Bill of Rights and the Fourteenth Amendment, 101 Yale L. Journal 1193 (1992), the parts of the Bill of Rights that have been applied to the states "reads like the greatest hits of the modern era": freedom of speech and the press (New York Times v. Sullivan, 376 U.S. 254 (1964)); privilege against compelled self-incrimination and right to counsel (Miranda v. Arizona, 384 U.S. 436 (1966)); right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); right to a jury trial in a criminal case (Duncan v. Louisiana, 391 U.S. 145 (1968)).

But when plied in 1886 by the lawyers for the Haymarket defendants, the argument that the Bill of Rights applied to the states through the due process clause of the Fourteenth Amendment was a sure-fire loser. The Supreme Court declined even to hear the Haymarket appeal. 123 U.S. at 182, 8 S.Ct. at 32.

Today, I would hazard that not one American in 100 knows about the Haymarket riot, even though it provided the basis for the worldwide observances today of May Day. Probably not one American in a thousand could identify Albert Parsons or August Spies (much less Michael Schwab or Adolph Fischer). Today, May Day is the international workers' holiday, observed in much of the world – but ironically not here in the United States where the events occurred that originally gave rise to the holiday.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Jerry Elmer is an environmental lawyer in Providence, Rhode Island. He is the author of Felon for Peace: The Memoir of a Vietnam-Era Draft Resister (Vanderbilt University Press 2005), which was published in Vietnam as Toi Pham Vi Hoa Binh.